Formal Validity of Arbitration Agreements Conluded Via Electronic

CEU eTD Collection Hungary 1051 Budapest,Nador utca 9. Central European University PROFESSOR: TiborVárady,S.J.D. COURSE: International CommercialArbitration LL.M.SHORT THESIS AGREEMENTS CONLUDED VIA ELECTRONIC VIA CONLUDED AGREEMENTS FORMAL VALIDITY OF ARBITRATION VALIDITYOF FORMAL MEANS OFCOMMUNICATION MEANS © CentralEuropeanUniversity March 31,2006 by Rustamjon Rasulov CEU eTD Collection from from being effective, and theirfuture effectiveness is also under question. the Communications. However, it will be shown that all these propositions at thismoment are far legalitself byapplying inparticular, techniques, different Convention onElectronic the This paper shall also examine the current propositions of changing the New York Convention agreements. arbitration be tothe cananalogously article the applied workable since VII(1) solution, most the far by is Convention York New the of (1) VII Article to recourse that shown be provide the electronic communications with the effect of “writing” under Article II (2), it will to sufficient not is itself interpretation the that conclusion the reaching after However, arbitral institutions world. the throughout of rules and laws national in also but Arbitration, Commercial International is only not intheModel Law on reflected “writing” requirement the interpretation of viewpoints possible all regardingfrom examined is Convention York New the of (2) II Article the all, of First its application, and it will approach a ratherto different formal issuethe of validity. be shown that the currentThis hasalreadytopic been in byseveral detail discussed butauthors, thispaper shall provide trend of relaxed Abstract i CEU eTD Collection Conclusion...... 40 ARTICLE II (2) NEW YORK CONVENTION...... 34 OF REQUIREMENT OF THE“WRITING” MODIFICATION EXPRESS PROPOSED III. Chapter 1. THE NEW YORK CONVENTION: OPTIONS FOR COEXISTENCE...... 23 Chapter II. NATIONAL LAWSAND THE WRITING REQUIREMENT OF ARTICLE II (2) OF ...... 7 ARTICLE II (2)? OF REQUIREMENTS COMMUNICATION FULFILL THE CONVENTION: CAN ELECTRONIC UNDER YORK NEW I: FORMAL VALIDITY AGREEMENT Chapter OF ARBITRATION ...... 4 Introduction Index of Abbreviations...... 3 Table of Contents...... 1 Abstract...... i Table of Contents 2. International Contracts by New York Convention member States...... 36 3. 2. 1. 2. 1. a. laws 28 b. a. Influence of national laws in determination of formal validity of an arbitration ...... 23 agreement. ii. i. Application of national laws in determination of formal validity of an arbitration agreement...... 26 arbitration of an validity offormal determination in laws of national Application b. a. ii. i. Ratification of United Nations Convention on the Use of Electronic Communications in Adoption of a protocol to the New ...... 35 York Convention Amendment to the New ...... 34 York Convention Interpretations of Article II (2)...... 8 Article II of the New York Convention as a starting point...... 7 The duty of the tribunal to render an enforceable award...... 23 Ways of integration of electronic communications into the “writing” requirement in national in requirement “writing” the into communications electronic of of integration Ways Application of article VII (1) New York Convention to arbitration ...... 26 agreements Other sources of law directly affecting the formal validity...... 31 Examples of national arbitration laws most tolerant to electronic communications...... 29 Substantive interpretations of the Article II (2) of the New York Convention...... 10 Black letter interpretation of the text of Article II (2) of the New York Convention...... 8 De-localization ...... 25 theory The ...... 25 law of the seat 1 CEU eTD Collection Bibliography...... 41 2 CEU eTD Collection LCIA ICANN UNCITRAL per se para(s). p. /pp. ConventionNew York Id. ICC Law Model E-Commerce E-Communications on Convention Lawof of the Treaties Convention Law Model of Abbreviations Index 3 London Court of International Arbitration International of Court London Numbers and Names Assigned for Corporation Internet Trade International on Commission Nations United by itself Paragraph(s) Page /Pages and Enforcement of ArbitralForeign Awards Recognition the on Convention Nations United idem same] [the of Commerce Chamber International Commerce UNCITRALContracts in International Communications Electronic United Conventionon Useof the Nations Model1969 Vienna Convention on theCommercial Arbitration of 1985 Law of LawTreatiesUNCITRAL of on Electronic Model Law on International CEU eTD Collection communications and their equivalence to paper-based communication. paper-based communications andtheir to equivalence validity electronic of to countries ofthe attitudes indiverging on essence, based, hasarisen, via electronic concluded means arbitration of agreements the of admissibility problem the contracting, negotiations and inbusiness-to-business electronic communication Convention. advancement the wide of usage New York of technology and Dueto the under the question. One of such highly debated issues is a case of “writing” requirement of the Arbitration. Commercial International of cornerstone be a to conceived is it nowadays arbitration, of development Electronic Means of Communication, LLM Short Thesis, Central European University, April 2007. April University, European Central Thesis, Short LLM of Communication, Means Electronic visited on 28 March, 2008; see also Bojana Jankovic, Formal Validity of Arbitration Agreements Entered Friendlyinto by National Legislation?, available at: < 2 visited on 25March2008. http://www.uncitral.org/uncitral/en/uncitral_texts/arbitration/New York Conventiononvention_status.html 1 be concluded. In proving the above, the author is going to rely on teleological interpretation of as its scope of of one formally meanbyvirtue the which could valid a agreement arbitration II(2) of the New York Convention, namely inclusion of the electronic communication within interpretational the shown, support current relaxed interpretationof Article the that tendencies be itwill Firstly, perspective. different from somewhat communication means of electronic this willapproach paper validity issueof the formal arbitration of an agreement by concluded Convention the conference to on 10 Junethen 1958.Since parties havebecome142 countries thecontracting diplomatic bythe adopted been has Convention], as New York to referred [hereinafter See Moss Giuditta Cordero, Risk Of Conflict BetweenThe New York Convention And NewerArbitration- at available Awards, Arbitral Foreign of Enforcement and Recognition the on of Convention Status Although considerable research has already been made regarding this topic this particular made regarding has alreadybeen research Although considerable is of Convention the of futureapplication uniformity casesthe insome Nevertheless, The Convention Recognition Foreign and on Awards Arbitral the Enforcement of Introduction 1 . The New York Convention. The hasbeen promoting successful New York the extremely http://folk.uio.no/giudittm/Formofarbitrationclause.pdf 4 >, last >, , last , 2 , CEU eTD Collection Chapter II: New York Convention: can electronic communication fulfill the requirements of Article II(2) raised issues the over discussions Convention. York New the of problems inapplication solve in is its the “writing”-related text, called to expressly stated lay might in 2005UNConventionto the accession on Electronic which, Communications, as to deal with unification “writing”the of under requirement Article the of II(2) Convention the the New York Convention will be discussed.requirements of the New York Convention It and non-uniform will interpretations of Article II(2) of be submitted that the most efficientendlessConvention, atputting to aimed anend concerning discussions formal the way that: proving by Convention York commercial arbitration rules). expressthe incorporation of electronicthe into communication institutional international Further on, this paper will relyArbitration), in domaininstitutionalthe current developments arbitration and of to (referring on Article VII (1) of the New making a parallel to the Article 7 of the UNCITRAL Model Law on International Commercial provisionthe in question, explore its legislative and interpretative history (namely, through Structurally the paper is composed of introduction, three chapters embodying chapters ofintroduction, three is composed Structurally paper the Lastly, proposals regarding the possibilitiesother notdo provide the necessary solution. express change of the Article II (2) of the New York York Convention agreements (by reference to commentaries and case law) and explain how it applies; National Laws and the writing requirement of Article II(2) of the New York x x x application of Article VII (1) isNew of the (1) VII article of for application reason is practical a there a workable solution for now, as theArticle VII (1) of the New York Convention is applicable to arbitration (Chapter I : Formal validity: of underarbitration agreement 5 ; CEU eTD Collection “writing” requirement Article of NewYork II(2) Convention Convention: options for coexistence Convention: options ; Chapter III: Chapter ; 6 Proposed express modification Proposed the of ) and the conclusion. the and CEU eTD Collection arbitration (Art. II of the New York Convention), in establishing the originality of the inof originality Convention), the establishing of NewYork II the arbitration (Art. to of phase the reference arbitration at to submission of validity the of the determination inmaking states of by national contracting the courts the areadhered to Convention means, highformal with ofcertainty,degree validity that standards of Articlethe of II(2) the 3 Convention tothe parties are the states 142 Currently agreement. arbitration the of validity formal to requirements the regulating convention international accepted globally Convention. the of II(2) Article of requirement “writing” the of interpretation communication into institutional international arbitration rules stands in favor of the broad modern possibility inclusion the the electronic of of trend of precluded, that express the and, be shall laws national the to thereof interpretation in references and interpretation independent to subject be to has Convention the that confirmed be will it Moreover, Arbitration. Commercial International Law on Model UNCITRAL the to by reference interpretation and interpretation, to approach teleological of basis the on interpretation thereof strict interpretation relaxed the that verified, be will it article, this by forth set dilemma of interpretational the “written” an with in dealing agreement; arbitration an of validity requirement formal of determination in of the New York Convention shallREQUIREMENTS OF ARTICLE IIprevail (2)? over COMMUNICATIONELECTRONIC FULFILL THE UNDERNEW CAN AGREEMENT YORK CONVENTION: FORMAL I: Chapter VALIDITY OF ARBITRATION Status of Convention on the Recognition and Enforcement of Foreign Arbitral Awards, Arbitral ofForeign Enforcement and Recognition onthe ofConvention Status The New York Convention has been chosen as a starting point because it is the most is the it because point starting a as chosen been has Convention York New The 1. This focusChapter will on Articlethe II(2)asthe uniform and rule startingthe point Article II of the New York Convention as a starting point Convention asastarting of theNewYork II Article 7 Supra note 1 3 , which CEU eTD Collection concerning requirementof the writing. or containedinanexchange ofletters or telegrams shall includeanarbitral clause inacontact or an arbitration agreement, signedbytheparties Congress series No 9, p. 67- 69 Vol.Report,15, #5.1998, page 25; Alvarez,“Article II(2) of New the ConventionYork Arbitration and the Courts”, ICCA International Mealey’s Convention”, New York the under agreement arbitration of an enforcement 2003), p. 113-114; Freidland, P.,„US Courts’ misapplicationof “agreement the inwriting” requirement for StefanM Kroll. Comparative CommercialInternational Arbitration (The Hague, KluwerLaw International, Commentary onNew Convention, York 2003KluwerLaw International; JulianD M Lew, Loukas AMistelis, 5 (Dewenter, KluwerLaw and Taxation Publishers,1994) p.176. 4 satisfy the requirements of Article II(2), or this list is exhaustive. could “agreements inwriting” that listof some of types of the a non-exclusiveincorporates “writing” requirement is exclusive or not, law. national the arbitration namely of form requirements of stricter regardless any State, in Contracting the by courts the enforced whether mustbe Convention Article IINewYork of the form fulfilsrequirement that the agreement or not the Article II (2) be “ agreements. Article II (1) of the New York Convention requires an arbitration of an agreementsarbitral award (Article V (1) of the New York Convention. to New the Convention)York finally, and, in denying allowing or recognition and enforcement arbitration in submitted to court agreement enforcingthe phase IV enforcementthe (Art. of Van den VanJ. 203 Berg A. 2042.Formaland Validity,Uniform and rule MunicipalLaw, Consolidated Van denBerg A.J. The New York Arbitration Convention of 1958 – Towards a Uniform Judicial Interpretation in writing The article II of New York Convention has unified various form various form has Convention unified requirements York The IIof article New Interpretational dilemma of Article II (2) rests on the question whether Article II's 2. New York Convention contains a uniform rule on the form of the arbitration New York Convention ”, while article II(2) thereof provides that “ that thereof provides II(2) article ”, while Interpretations of Article II (2) a. Black of letter interpretation the text of II(2)ofArticle the 5 4 According scholars’ to any opinions, arbitration 8 ”. the term“agreementinwriting” CEU eTD Collection interpretation has to be given to the its wording. its the to given be to has interpretation clarify what to sufficient not is itself II(2) article the language of the to a solereference that shows clearly texts these of comparison texts, authentic the between discrepancies the justify on 6 June 1958,4days adoption the before finalthe of text of Convention the NewYourConventionthe lastmore precisely,at the moment, firstit in appeared final draft “agreement in writing” “agreement (emphasis added) “agreement in writing” “agreement Law International. 7 6 Spanish the arevisiblynature, andFrench texts exclusive. provided below. While wording of RussianbeEnglish and seem nottexts to exclusive in is texts these of comparison the Russian, and Spanish, French, English, namely Convention, of NewYork the texts authentic equally the between discrepancies the demonstrate to order In given. be can interpretation extensive or strictly interpreted be to has provision this whether Van den Berg, A. J. “Field of Application”, Consolidated author. by the made are Commentary translations the on New Hereinafter York Convention, 2003 Kluwer Even though the admission to be made here that Article II was included into the text of 9 9 9 9 It is not clear from the language of the article II (2) of New York Convention itself Spanish: La expresión 'acuerdo por escrito' 'acuerdoSpanish: Laexpresión French: Russian: in writing" "agreement term The English: On entendpar denotes/means includes Ɍɟɪɦɢɧ (emphasis added) “ ɢɶɟɧɟ ɫɨɝɥɚɲɟɧɢɟ ɩɢɫɶɦɟɧɧɨɟ (emphasis added) “convention écrite” – “agreement in writing” “agreement – écrite” “convention 9 6 shall include ” denotará ɜɤɥɸɱɚɟɬ – The expression –The 7 – The term – The , which could which , means CEU eTD Collection Publishers, 2d ed., 2001), pp. 135-136 9 8 optimal solution strict interpretation of the “writing” requirement has not been anticipated by the drafters as an mechanism. resolution adispute as acceptance its wider and arbitration commercial international to the missionThis is popular. transactions of commercial international theconcluding for New York Convention means communicational of newer the utilization the where in societies, especially arbitration, to serve commercial international of detriment the the to serve well might it with enhancementkeeping drafters, the of attractivenesscompromisoire compromise). or Although is this obviously asituation originally envisaged by of clause totheir written of parties’ signatures attachment original and (besides telegrams letters of exchange than other means of usage the over Convention the by imposed limitation communications excludenotdoes arbitrationmeans possibility agreementsby the concludingof of other some of typesthe of arbitration agreements satisfying Convention's the requirements, and English text of Article II (2), namely “ Born, G. B. International Commercial Arbitration: Commentary Materialsand (Ardsley, NY. Transnational Article II (2) of the New York Convention, U.N. Doc. A/CN. 9/592, para. 87 Moreover, as the discussion below will show, there is a strong probability, that the that probability, strong is a there show, will below discussion the as Moreover, a literally would one understand interpretation aboveprovision the of Under strict the The commentaries supporting extensive interpretation rely on the wording of the wording of The supporting interpretation on rely extensive commentaries York Convention 9 ab initio . i. b. ii. Strict interpretation of Substantive interpretations the ArticleII(2)of the New Relaxed interpretations . shall include” 10 8 , stating that Article II (2) merely lists per se per will contrary go will CEU eTD Collection electronic communication was not normally used or even existent normally or used was not communication electronic available. means of“written”communication Convention –expressinclusionthepromptest accepted communication mean in commercial world its status as mean inwriting itsnothavebeen communication status could accepted commercial world generally a as telecommunication of emergence actual after with immediately while comes Namely, time. “recognition” the that shows, etc fax, telecommunication, – communication of means Convention theNewYork of II(2) in theArticle mentioned those to “alternative” other the of experience an nature, human the of part integral an constitutes and normal is known is well not tosomething that hostileWhile fairly attitude among practitioners. and scholars instrument adoption hasgained tothe of technology notauniform the subsequent acceptance writing requirement of the Article II(2) of the Convention as a result of the development of Assembly resolution 61/33 of 4 December 2006 December of4 61/33 resolution Assembly General Awards”, Arbitral of Foreign Enforcement and Recognition the on Convention ofthe 1, VII,paragraph at 7-8; see also “Recommendation regarding the interpretationof article II, paragraph 2, and article that international business and ends, world wouldthe have between daily exchanges availed itself haveelectronic of to these means. permitted Mosshave would Giuditta Cordero, developments technological that this is hardly surprising,considering that in 1958,when theconvention was written, one wouldno have imagined 11 visited on 28March, 2008. Friendly National Legislation?, available at: < 10 interpretation oftheNew ConventionYork Awards seemsrelativelyeasy toanswer affirmatively, onthebasisofanextensive Foreign Yorkis set andEnforcementofArbitral bytheNew ConventiononRecognition writtenwhichthe therequirement of meets form, arbitration clauseenteredintoelectronically As correctly noted by Moss, “the wording does not make direct reference to electronic telecommunication, but telecommunication, electronic to reference direct make not does wording “the Moss, by noted correctly As See Moss Giuditta Cordero, Risk Of Conflict Between The New York Convention And Newer Arbitration- Even though it is obvious, that at the time of adoption of the New York Convention York New the of adoption of time the at that obvious, is it though Even 1. For instance, in opinion of the Giuditta Cordero Moss Teleological interpretation of the Article II (2) of the New Teleological interpretationoftheArticleII(2) York http://folk.uio.no/giudittm/Formofarbitrationclause.pdf ” 10 . 11 , “the question, “the whether an 11 , its incorporation into the into incorporation its , Supra note >, last 10, CEU eTD Collection 14, 3,Septemberno. 1997), p.219 13 Maxwell, 4 12 178(1)of Art. asthe thesame practically are requirements Model Law, and these Arbitration the of meaning the within broadly interpreted be to have Convention York New the of (2) II Commercial Arbitration and awards. enforceability arbitration arbitral of agreements furthermore,drafters and, will purpose serve themainof convention:the ensure the the of intent initial the with in line go would Convention York New the by required “writing” of scope into the inclusion e-communication of the that mightbeinferred, it “telegrams”, – communication means of “written” available promptest theretothe Article II(2) language of the into include to 1958 in Convention York New the of drafters the of intent an been email by nowadays finally, by fax,later largely and, by telex, werereplaced mean of communication, promptest while the telegrams which were frequently used at those times and constituted, in essence, the such. as its recognition decisions demonstrate court multiple andlater changed situation the accepted, telegrams, etc. telegrams, fax, telex, as such meansof communications, astheother qualities havethe emails same the Arsic, Jasna "International Commercial Arbitration on the Internet" Journal of International Arbitration (Vol. Redfern, Alan & Hunter, Martin, The Law And Practice Of International Commercial Arbitration (Sweet and Thus, taking into consideration recent technological progress and noting, that it has it that noting, and progress technological recent consideration into taking Thus, The has Swiss Court decidedSupreme that the requirementsputforward by Article the 2. inThe began actually information revolution 1958, development technology after th ed. 2004). Para. 3-07. 13 Interpretation byreferencetotheModelLawonInternational 12 . Indeed, as demonstrated by Jasna Arsic, from the technical viewpoint, from technical the Arsic, byJasna . Indeed,as demonstrated 12 CEU eTD Collection (Germany no. 42). (Germany no. 12); Bundesgerichtshof, 3 December1992 (Buyerv. Seller), Yearbook XX (1995) pp. 666-670 Bundesgerichtshof, 12February 1976 (Romanian firm v. German firm), Yearbook II(1977) pp. 242-243 18 or not. contractual whether relationship, legal ned defi of a respect in agreement by an is the parties to agreement” submit to arbitration“Arbitration all orcertainstates: 7 disputesArticle II whichOption have arisentelecopy; or or whichtelex may telegram, arise between mail, them electronic by electronic, magnetic,stored or optical received or sent, similar means, generated, including, information but means not limited message” to,“data electronic messages; data interchange ofdata by means (EDI), make parties the that communication any communication”means “electronic reference; subsequent for useable be to so as agreement be inwriting is met by an electronic communicationif the informationcontained therein is accessible […]”. 17 by another denied not and party by one alleged is agreement ofan existence the which in defence and ofclaim of statements exchange in an or agreement, of the record a provide which telecommunication of means other or telegrams telex, letters, of exchange an in or parties by the signed document 16 (Paris/1999),pp. 25 – 35, p.31 15 Company SA (1995)BGE 121 III 38, ASA Bulletin 3/1995 503 14 applicability should notbe denied on the basis Articleof VII(1) of the New York Convention, their potential and,though legal order of different lawsareobjects national the meantime, the In each-other. on dependent extent specific to possibly, and, comparable extant] certain [to them makes which order, legal international in the functioning of aerials akin and Convention Law“animals”identical andlegal Model arespecific with the almost “parents” laws national the to reference making allow would that Convention equal in interpretation the NewYork mindthe not of has tokeep thisto approach does that communications beyond reasonable doubt via exchange of e-mail concluded agreement formal of issuesarbitration validity the However,UNCITRAL arecent development– a new, 2006version of leaves Model the Law “writing” requirement, even despite the fact that commentators do support such inclusion. the into incorporated communication mean of is a communication if electronic result in Convention’sof lightprovide NewYork the still would a thereof not text onewith clear Berg LawAct International Swissthe Private Such approach on several occasions has been demonstrated by the German courts, see for instance see for courts, German by the demonstrated been has occasions on several approach Such OptionI Article 7(4)of Uncitralthe Model Law 2006 provides: “(4) The requirement that an arbitration The text of the relevant part of this Article provides: “[…]An agreement is inwriting if it is contained in a Van den Berg, A. J, “The application of the New York Convention by the Courts”, ICCA Congress series no. 9 Switzerland, Federal Tribunal, Compagnie de Navigation deTransports SAv. MSC Mediterranean Shipping 15 . Speaking about Article 7(2) of the 1985 version of the Model Law Articleversion of Model the Speaking 1985 the about 7(2)of In clarifying the “interpretation within the meaning of of one Law” approach, Model meaning the the within In clarifying the “interpretation 17 14 . . The same opinion is also shared by Van den 13 18 16 . Both New York , the interpretation CEU eTD Collection 23 Convention. HoustonJournal of International Law Spring, 2006. P.671 22 series 9 no. (Paris/1999),p. 119. 21 overruled by referring toother national laws, namely stating that Article II (2) “ be cannot and agreement arbitration the of validity formal the for requirement sets that rule 20 interpreted independently, without theassistance of anational law written New the requirement according IIofthe of toArticle form York Conventionistobe is“ agreement arbitration the validity of 19 effectuation efficient of internationalarbitration clauses that asingleharmonized approach totheuse of articleII theNYC canleadtoamore validityon theformal ofarbitration agreements “ theposition above case lawsupport described undertheConvention where theagreement falls municipal law ofthearbitrationagreementinthosecasesany ruleof regarding theform whichsupersedes rule uniform aninternationally the Conventionis (2) of requiredby Art.II developments. domestic of light” “in Convention York New the of interpretation as bewill in described morebe below, this details notshould applicability confused with and national courts generally apply theNew York Convention over national law when deciding See Swiss Supreme Federal Court Judgment of 21 March 1995, XXII Y.B. Comm. Arb. 800(1997) NewYork the under Agreements Arbitration of Effects Harmonized D.“Securing Leonardo Graffi, Lew, Julian D.M. “The Law Applicable to the Form and Substance of the Arbitration Clause”, ICCA Congress Born, G.B., Van den Berg, A. J, Other courts have also found that the Article II (2) is havefound substantive Article the that a II(2) applicable courts Other also directly In one of its decisions, Swiss Federal Supreme Court held that the issue of formal According to3. Van den Berg, “ Supra note 9 Independent Interpretation (reference to national lawsisprecluded). Independent Interpretation(referencetonational Supra note 15, , p. 136 p. 32. p. The writtenThe form ofthe arbitration agreement as determined solely according totheConvention; the 14 20 ” . In particular, it has been submitted, that submitted, been ithas particular, . In ” 21 19 , as the article II(2) “ . A number of commentaries as well as ” 22 . ” 23 . purports tosuggest does not allow CEU eTD Collection communication could be classified into basic bethree communication could the groups: classified international and regional arbitral institutions of rules arbitration commercial international the through is followed communications interpretations. alternative of thevalidity of justification will addto it above, are described that factors, other with the “writing” requirement aloneThough factor this suffice wouldliberal insupporting not interpretation a of the set by the achieved. been has Article arbitration commercial international in the communication II(2)electronic of the New York Convention,andinstitutions regional testifiesarbitration certain that level of acknowledgement of the international the of rules and taken practice the by extent) different to indeed, together (yet communication ArbitrationRules the InstitutionalInternationalCommercial http://www.kluwerarbitration.com/arbitration/toc.aspx?type=Rules by the kluwerarbitration database, available at: 25 Arb. 685 (BaselApp.Ct. 1994) XXIII Y.B. Comm. Arb. 654 (Supreme Court of Greece 1997); see also DIETF Ltd v. RF AG, XXI Y.B. Comm. 24 requirements whichthe said notmeet an arbitrationclausedoes the validityof acceptance of for The classificationof arbitral institutions into international and regional is offered onthe basis of that suggested Ltd, Ass'n Indemnity and Protection Mutual Shipowners of England West v.The Co. Maritime SeeANC A trend towards recognition of the electronic communications as a valid type of electronic of the acceptance wide-spread the that position, isIt author’s the 4. ” 24 statements andstatements communications meansconcluded arbitration via communication agreement electronic Interpretation inlightofrecognitionelectroniccommunications . a) b) those that expressly provide for the formal validity of an those that allow electronic transmission of all notices, 25 15 . The rules dealing with the issues electronicof CEU eTD Collection on Commercialon Arbitration,Paulsson J. (ed.), Suppl. 18 (September/1994) and Suppl.25 (January/1998), by President, on31August1994.the (Effectivefrom 1September 1995), publishedInternational in Handbook promulgated and ofChina, Republic People's the of Congress People's National 8th ofthe Committee Standing 26 law underthe arbitration agreements arbitration in the formation of the accepted is expressly e-communication Japan Indonesia) and developments. For the sake of clarity it has to be noted, however, that in all three seats (China, showed theflexibility Asianof arbitral institutions and their openness to newthe trends and Rules these agreements, arbitration electronic accepting in expressly pioneers the Being arbitration agreement. to formal requirements with the ascomplying e-communication the tribunal. the and parties the asbetween aswell dispute arbitrated tothe in-between parties the mean communication as ande-mail convenient establishesan acceptable seemingly currentgradually trend institutions andthe and institutions,parties, arbitral as well arbitral as between arbitrators the hearings), (in to arbitrators awardsubsequently the draftingcoordination of their activity or of co- between the mean communication of became a dominating has currently communication e- that new not is it While arbitration. commercial international of practice international in recognition a global getting way to is on the an e-communication that conclusion the to one leads which spreadgeographically, widely arequite in work their electronic communication Art. 16(1) of the Arbitration Law of The People's Republic of China, adopted at the 9th Session of the Quoted below are the three provisions of the rules that show particular acceptance of acceptance particular show that rules the of provisions three below arethe Quoted As the analysis below will demonstrate, the institutions that expressly allowed notices, statements and communications statements notices, communication means communication the formal validity of an arbitration agreement concluded via electronic c) a. those that allow electronic transmission of certain of types certain of transmission allowelectronic that those International Commercial Arbitration Rules that expressly for expressly Rules that Arbitration Commercial International 16 26 . Thus, in adopting a progressive approach, a progressive in adopting . Thus, CEU eTD Collection arbitral awards rendered on the basis of Art. V(1)(a) of the New York Convention [particularly for non- for [particularly complianceConvention of York New the arbitrationthe of agreement of V(1)(a) the formof Art. requirement] basis the is on minimal. rendered awards arbitral of the enforcement and of recognition denial of risk the case which in clientele, regional and national serving arbitration agreement shall beinwriting. Anarbitration agreement is writingin ifitis arb.org/bani_tempat_eng.html http://www.cietac.org.cn/english/introduction/intro_1.htm http://www.jcaa.or.jp/e/index.html involved inarbitration carried out by institutionsthe concerned is available attheir websites (see 27 parties”. by the correspondence of such of receipt by arecord beaccompanied shall same the of communication, form other or any e-mail, faxes, telegrams, telexes, letters, including correspondence, of exchange an in contained is by arbitration ofdisputes resolution for agreement the event the “In provides: 4(3) Internationalin HandbookonCommercial Arbitration, J.PaulssonSuppl.(ed.), 47(November/2006), its Art. in Finally, Indonesian Law No.of 30 1999 Concerning Arbitration andAlternative Dispute Resolution, published (e.g., e-mail, etc.)”. “anarbitration agreement is not effective if the terms of the agreement are not setforth inwritten instruments February 2005), available at according to the Nagashima Ohno and Tsunematsu Commentary to the Arbitration Law of Japanprocessing (last updateddata- by for a computer) in used and recording function its content,sensory the arbitration natural by agreement unrecognizable shallmeans be writing.in other any or Furthermore, magnetic electronic, by produced (records record electromagnetic of way by made is agreement an arbitration When (4) [...] instrument. distance which provides a at the recipientparties for with device awrittencommunication record ofother or the device transmittedby content),facsimile sent those orother written (including parties the between arbitration agreement shall be the formin of a document signed by all the parties, letters ortelegrams exchanged http://www.kluwerarbitration.com/arbitration/DocumentFrameSet.aspx?ipn=80359 Art.added); on submissionagreement an to and arbitration contract, thatthe in is concluded included in other clause written arbitration formsan includes agreement arbitration “An provides: 13 of EDI,orEmail. facsimile, of telegram,telex, tangible form adocumentsuchascontract,letter, contained ina Commerce International of Chamber Trade/China International of Promotion the an of phase award at hinder an of enforcementarbitral enforceability as itstill might premature, is somewhat ahead, astep being overall agreement, arbitration into the sections of the international arbitration rules governing standards the formal e-commerce the of validity of incorporation express an that opinion is author’s it However, seat. inthe awards of their arbitral faced aside nota risksetting of werewith institutions the Itmight be presumed, alternatively, eventhought no data as to the nationality of the parties most frequently According to the Article 5(3) of the Arbitration Rules of China Council for the Japan’s ArbitrationJapan’s Law of 25 July 2003, available at: http://www.kluwerarbitration.com/arbitration/DocumentFrameSet.aspx?ipn=80284 forBANI)advertised their and internationalcharacter, that they mostly are An arbitration agreement shall be deemed to exist where its exist deemedto shall Anarbitrationagreement be forJapan International Commercial ArbitrationAssociation; 17 forCIETAC and before or after the dispute arises” (emphasis , establishes that: 2) The 27 . http://www.bani- , “ The , CEU eTD Collection added) created or reason message(emphasis thatitiscontainedinanelectronically transmitted other instrument which isrequired tobeinwriting solely shallbedenied legalforthe effect correspondence, noticeor document, no agreement, and othersuchcommunications; e-mail telefax, meetings, telex, minutes of correspondence, of exchange agreements butalso electronicallywritings createdand/or such transmitted documentation; to includenotonly “ beagreementto in further however, definingwriting, Article writing, 3(m)provides: theparties’ requires rules said the Articlemeans. 1of different via slightly communication) by meansofe- concluded agreement anarbitration allowed expressly same outcome(i.e. agreement shall be writingin computer recording its content (hereinafter "electromagnetic records"), thearbitration a by fordata-processing recognition byhumanperception used other methodincapableof or byany magnetically, electronically, recordation prepared way of by agreement ismade Commercial Arbitration Rules, which,in Art. 5(3) of its rules provided: “ e/shouji-e.html 29 Arbitration, A.J. van denBerg (ed.), Vol.XXX (2005). 28 Request for Arbitration and the Statementof Defense existence is byonepartyandnotdeniedtheotherduringexchangeof asserted XXVIII (2003), pp.331 – 353. 30 Writing” shall include not only documents writtenWriting”shall include only documentsorprintedonpaperbutalso not As Amended and Effective on March 1, 2004 Available online at Revised adopted and on11 January 2005, effective asfrom 1May 2005. Published in Adopted on 1March2003. Published in Yearbook Commercial Arbitration, A.J. van denBerg (ed.), Vol. ” The Indonesian National Board of The Indonesian National of ArbitrationBoard (BANI) Procedural Rules the reached by Similar has been Commercial Association solution Arbitration adopted Japan the 30 . . ” 29 . 18 ” 28 (emphasis added). http://www.jcaa.or.jp/e/arbitration-e/kisoku- When anarbitration Yearbook Commercial Yearbook CEU eTD Collection communication maybeused CAMCA Arbitration Rules any other arecordtelecommunication thatprovide means ofitstransmission of Article 4 of LCIA Rules transmission, air mail,courier, telegram facsimile written forms or other of telex, telecommunication means orbyelectronic orother of by facsimile, registered mail, by personally, delivered Rulesmaybe these under orpermitted communication required pp. 329 - 344 34 XXIII (1998), pp. 369 - 393 33 XXVIII (2003), pp.289 - 304 32 http://www.kluwerarbitration.com/arbitration/DocumentFrameSet.aspx?ipn=80592 31 electronic communication Resolution (ICDR) Dispute for Centre International Association Arbitration American of Rules delivery provide arecord of Columbia International Commercial Arbitration Centre (BCICAC) removed. is arbitration commercial international of conduct regular to e-communication the for the provision of such a allows record,technology internet of state current As the of dispatch. record the on beenplaced has it looks like a formal barrier a),theemphasis drafter the of in thegroup in fact as, rules mentioned the that, emphasize precluding the admission of Adopted in 1996. Published in Yearbook Commercial Arbitration, A.J. van denBerg (ed.), Vol. XXII (1997), Adopted on 1January1998.Published inYearbook Commercial Arbitration, A.J. van denBerg (ed.), Vol. Adopted on 1July 2003. Published in Yearbook Commercial Arbitration, A.J. van denBerg (ed.), Vol. Adopted on 1January 2001, available at For example, Article 2 (2) of International Commercial Arbitration Rules of British of Rules Arbitration Commercial International of 2 (2) Article example, For Proceeding to the second group of rules, quite numerous in its content, one has to 32 expressly allow all notices, statements and written communications to be sent " electronic transmission of all notices, statements and communications b. 33 ... unless otherwise agreed bytheparties agreed unlessotherwise ... also expressly allows the communications to be sent by “ " [emphasis added]. TheArticle 18of Arbitration International 34 International Commercial Arbitration Rules that allow that Rules Arbitration Commercial International ” in communicating the messages. Rule 2.2of Singapore Article 20 provides that “ Article that 20provides 19 writtenelectronic forms of 31 " (emphasis added).The " (emphasis states that " ”. Similarly, Any written e-mail or which by CEU eTD Collection communications. of schedule general their into e-mail of inclusion the toward steps made recently institutionsleading arbitral ofthe Russia of jurisdictions CIS region – andUkraine, two the instance, the data. For toelectronically transmitted legal attributed meaning the towards by inflexible the jurisdictions attitude rather thatareknown to arbitral spreadeven tribunal available. is transmission of record the provided Internet, via available means other by also but mail, not only by e- inform be electronic to sent communications allows these provider, expressly and penal the parties, between the communications of form the with deals rules these mentioning dueto naturethe and subject the of proceedingsthe underthese Rules. Article 2of thereof”. sending of providesthe arecord that communication any means of or other e-mail transmission, mail,facsimile registered or courier Commerce of Chamber Stockholm electronic transmission of any form way of http://www.kluwerarbitration.com/arbitration/DocumentFrameSet.aspx?ipn=80925 36 XXIII (1998), pp. 424 - 440 35 (SIAC) Centre Arbitration International Adopted on 1January 2007. available at: Adopted on 22 October1997. Published in Yearbook Commercial Arbitration, A.J. van denBerg (ed.), Vol. The trend for expressly allowing electronic communication between the parties and between parties the communication electronic expressly allowing for The trend The ICANN Rules for Uniform Domain Name Dispute Resolution Policy are worth communications and notices, statements of types certain of transmission electronic c. International Commercial Arbitration Rules that allow that Rules Arbitration Commercial International 36 states that a communication “shall be delivered by delivered be “shall a communication that states 35 allows any written communication to be made “ ”. Article 8 (2) of Arbitration Institute of the 20 by CEU eTD Collection approach” “functional popularity has tobepaid the the equivalent as,eventhough of a duecaution, with attention this However, Convention. York New the of II(2) Article of requirement writing the of interpretations relaxed to the pay attention to due itseems reasonable trade, international technology and global acceptance of developmentsthis by partiesthe involved in conduct of also may be handed over personally to the representative of a party against receipt. and sent, isa maderecord communication of the that provided otherwise, fax, or e-mail, wire, orders orrulings [ universally universally accepted. atArbitration CourtUkrainian the Chamberof Commerce andIndustry otherwise, providedthatarecordismadeofthecommunication sent Article allows [the ]“ shallorders by be sent mailregistered receiptwith return requested, nextthe part of samethe the statements of claim, explanations of the claims,notices of the hearing, arbitral awards, and I (e),“The “functional equivalent approach” is based on ananalysis purposes of the andfunctions of the 40 orby courier mailof delivery as an advice well with as mail may be byregistered handed over theparty to be sent personally shall to documents the these representative Industry and Commerce of a party against receipt. 39 38 pp. 462 - 489 37 Court at the Chamber of Commerce and Industry of the Russian Federation than statements of claim, statements of defense, notices of the hearing,arbitralclaim, statementsofdefense,than statements awards, noticesof of According to the Guide to Enactment of the UNCITRAL Model Law on Electronic Commerce (1996), Section (1996), Commerce Electronic on Law Model UNCITRAL of the Enactment to Guide tothe According According to the Rules ofthe International Commercial Arbitration Court at at the Ukrainian Chamber Available of 2007, April 17 on Approved Adopted in2006, Published in Yearbook Commercial Arbitration, A.J. vandenBerg (ed.) Vol.XXXI (2006), To conclude, it has to be noted, that in light of the recent developments in the state of state in the developments recent the of light in that noted, be to has it conclude, To Conclusion for Chapter I. In the similar tone, Article 15(4) of the Rules of the International Commercial While Article 16(3) of While Articleof newthe 16(3) Rules Arbitration of Commercial International the 40 to recognition of electronic communications is rising, ityet hasbeen is not torecognition rising, electronic communications of 39 ] documents and communications shall may be sent by ordinary mail, by mail, by ordinary sent be may shall communications and documents ] notices andcommunications [to]besent bywire, e-mail, or fax, http://www.ucci.org.ua/arb/icac/en/rules.html 21 ”. 38 providesother that 37 still requires that CEU eTD Collection provided that a number of technical and legal requirements are met[…]”. are requirements legal and of technical anumber that provided data, of the content and source of the identification the to respect with especially speed, and reliability of degree higher much a cases, most in and, paper as security of level same the provide can records electronic paper, to publicfor allow to data; same the of copy a authoritieshold the authenticationwould party of each data by means of that so a signature; and to document of a provide that a document would reproduction bethe formfor in a acceptable allow to and courts.provide that a document would be legible by Itall; to provide that a documentshould would remain unaltered overtime; Group IVinparticularstated: “[…]among thefunctions served byapaperdocument are the following: to be notedfulfilled through electronic-commerce techniques”. Injustification thatof the above approachUNCITRAL Working in respecttraditional paper-based requirement witha view determining to how those purposesorfunctions could be of all of the above-mentioned functions of 22 CEU eTD Collection Arbitration, Vol. 18 No. 2 (2001), p. 135 p. 2 (2001), No. 18 Vol. Arbitration, 42 Hague,(The KluwerLaw International 2003),p. 116 41 control facto ade exercising several, one leastof at or one, is the country that outthat turns often in be promulgatedthatrule.likelihood It in which the country refused all enforcement award. They ifshould that consider applynot they do a mandatory oflaw,rule award the will their of future the to heed pay should [A]rbitrators institution.... an as arbitration international of survival the to duty of sense a of out so do to incentive an have nevertheless ought “they public policy of country boundany and as arenot such by mandatory the rules any of country, any attached to supported by nor country, be they any the guardiansgovernment, cannot of nocere para.“To at 140]. arbitrator's advocate the Hippocratic equivalentto the Oath ( itany renders is lawaward Rulesenforceable at [ICC 35; ICC Art Award of 7 December 2001 that ensure to effort every make to tribunal the compels arbitration international of principle the Member States and not on the arbitration tribunals agreements. formal validity arbitration of of laws on determination COEXISTENCE FOR OPTIONS CONVENTION: REQUIREMENT OF ARTICLE II(2)OF THE NEW YORK Horvath,Günther J.“The Duty of the Tribunal to Render an Enforceable Award”, Journal of International Lew, Julian D M., Mistelis, Loukas A., Kroll, Stefan M., Comparative International Commercial Arbitration , or“above all else, don't render an unenforceable award”) The provisions of the New York Convention are only directly binding on the courts in courts the on binding directly only are Convention York New the of provisions The a. national the of influence the of extent and possibility the on focus will Chapter This formal validity of anarbitration agreement. NATIONALII. Chapter LAWS WRITING AND THE The duty of the tribunal to render an enforceable award anenforceable The dutyof tribunal torender the 1. Influence of national laws in determination of determination in laws national of Influence 23 41 . However, a generally accepted agenerally . However, ”. 42 As arbitrators are neither are Asarbitrators primum non CEU eTD Collection Publications,January 1978 part I.C.2). awards” (Gaja, ofarbitral Giorgio, Internationalenforcement and Commercial recognition the Arbitration.concerning The rules Newthe with York Convention. connected Oceania clearly is it proceedings, judicial on agreements arbitration of effects the only concerns directly II Article the “Although thereto: reference clear a makes it as Convention, York New ofthe (2) II Article to connected directly is IV article the that a duly copycertified beenthereof”.It has mentioned during preparatorythe works New of Convention,the York York Convention hasto submit to enforcingthe authority “[…] theoriginal agreement referred toin article II or 46 made”. was award the where country the not edto valid in Article II] underis the law to which the parties have subjected it or,failing the indication award may thereon, be and denied if recognition enforcement under agreement the refer “[arbitration the an that lawstates (a) of V(1) Article the and Convention, York of VNew in article stated denial are for enforcement and grounds only The recognition aside. setting for or enforcement, and of recognition denial for grounds 45 44 284-86 (1986) 43 Convention V(1)(e) of the New YorkYork ConventionConvention, formal requirements of Article IV of the New York its disregard attitude” reasonableis to not it situation; the over leads one to the Art. II of the New York Convention] enforcement will be thought, it is reasonable to refer to the delocalization theory [which still factorsmust intobe account. that important taken States, the fact remains that the law of the seat and the decisions of the courts of the seat are intheUnited in in certain decisions and law practice, and as contemplated French seat, the of courts the by aside set been have they that fact the despite awards enforce to prepared be award” render anenforceable is to tribunal arbitration Pursuant to Article IV of the New York Convention, the party seeking enforcement of an award under As the tribunal has Newthe duty to render anenforceable award, it has to take into consideration the possible Julian D.M. Lew. Born, G.B. a) This obligation might have several practical implications. practical several have might obligation This in Similar view was Even a number supported may of certain cases. though countries b) Supra 9,note 46 ) the law of the seat has still to be taken into account (Article V(1) of New the V(1)of (Article account into be taken to has still seat law the of the as the Tribunal can hardly be certain in which particular countries the Supra note 21, 45 , the risk of award set aside – possibility of art. aside under possibility , theunenforceability riskaward setof of – p. 568; Mayer,Mandatory Rules of Law in International Arbitration, 2 Arb. Int'l 274, p. 119 p. 24 44 . 43 . “The ultimate purpose of an CEU eTD Collection Arbitration (KluwerLaw International, 1999),para. 418 50 Arbitration inKuala Lumpur 8 Journal of International Arbitration 4(1991) p. 104 Martin, law and any particular arbitration the agreement between linkis no there under thatthe theory have de-localization stated theory delocalization intent parties’ the to only looking law national any from validity of matters the separate to being theory in finds caseathand” inconvenient arbitrator the the topursueamore justice oflawrules arbitrator byignoring perfect otherwisethat applicable from judicial arguably national completely control the arbitral at the detached seat, permits system, adjudicatory transnational “A whatsoever. requirements form any over priority has to take arbitrate to of parties the intention the and all, at rules any domestic to subject be not should they system, legal country’s any of a part form not do tribunals as arbitral 49 59 Chatterjee, S.K. The DijboutiCode of International Arbitration, 4Journal of International Arbitration1 (1987) p. 48 signed”. Van den Berg, bespecifically A. J, contracts certain in agreement arbitration the that Code, Civil Italian ofthe 1342 and 1341 47 setting higher threshold than the New York Convention itself. This case is really rare are in suchrequirements only case anecessity becomes agreement form of arbitration the the to in regard legal requirements “local” the of observance the that conclusion, the come to may one state, Member Convention in NewYork the located is tribunal arbitral seatof the the Gaillard, Emmanuel and Savage, John (eds.)Fouchard Gaillard Goldman on International Commercial Lew, Julian, Mistelis, Loukas and Kröll, Stefan, Park, William. Judicial Controls in the Arbitral Process. 5Arbitration International 3 (1989) pp. 232; see also ofArts. requirement stricter the cases early some in applied courts Italian Berg:”The den by Van Asnoted Supra note 12, There is a growing trend of supported by both byboth andisTheresupported law,commentators trend agrowing of thatthe the case Accessing the New York Convention as the basic standard and taking for granted, that for granted, Convention andtaking as thebasicstandard Accessing NewYork the 49 . France is a notable example, where the leading. Franceisanotable the where scholars example, the supporting para 2-26; Arfazadeh, Momayoon. New Perspectives in South East Asia and Delocalised and Asia East South in Perspectives New Momayoon. Arfazadeh, 2-26; para Supra note 15, ii. i. De-localization De-localization theory The lawofthe seat fn. 8. Supra note 41, 25 50 , since the tribunal is not limited by the by limited not is tribunal the , since 48 , the main purpose of the de-localization para. 6-73; see also Redfern, Alan; Hunter, 47 . CEU eTD Collection 53 General Assembly resolution 61/33 of 4 December2006 Awards”, Arbitral ofForeign Enforcement and Recognition onthe Convention 1, ofthe VII,paragraph article 52 51 the Convention or the more favorable national law is emphasized by Van den Berg. of either interpretation “combined” than rather Thealternative lessstrict requirements. puts Convention indetermination validity in arbitrationof of lawan case agreement national this law NewYork the apply insteadof ownnational its awardto an enforce recognize and to be relied upon” is sought such award where country the of thetreaties or by thelaw allowed extent the and to manner in the award arbitral an of himself avail to have may he right any of party interested “The provision”,… deprive states: of provisions Convention presentthe shallnot any agreements by Convention.adopted Article IIof the NewYork the approach with the which is consistent agreements, arbitration commercial international supports “higher”the though unified“writing” threshold in approach in to requirements arbitrate” to intent parties’ the of indication minimal “most is a it if even law, national applicable Van den Berg, Thisview was supported by “Recommendationthe regarding the interpretation of II,article paragraph 2,and Republic of v.Nicaragua Standard Fruit Co. United States, Ninth Circuit 937 F.2d 469 (9th Cir. 1991). Being literally,interpreted provision this whichonly allows the iscourt asked to right “more-favorable the embodying Convention, York New the of (1) VII Article a. formal validity of anarbitration agreement Thus, byestablishing a unified legal a-national regime delocalization theory seemingly 51 , can be established, the arbitration agreement exists. agreement arbitration the , canbe established, 52 Supra note4, p Application of article VII (1) New York Convention toarbitration Convention VII (1)NewYork ofarticle Application 2. Application of national laws in determination of indetermination national laws of Application . 85-86 26 53 CEU eTD Collection Agreement” Electronic Journal of Comparative Law, vol.11.1 (May 2007) 57 (Italy), 4August 1993, (Yearbook Commercial ArbitrationXIX, p. 703 ). Netherlands, Court of Appeal, The Hague, Owerri commercial Inc. (Panama) v. Dielle Srl. 56 1074 CCPfor aspecial provide jurisdiction rulefor (lack the of) courts in Dutch State of the efficacy even saidhave to beenin implied itself, the Convention its being purpose themaximum Convention,arbitrationbe inArticleit this York (1) of isreflected can principle New the VII international of in case and provisions, conflicting are there if solution efficient most Convention. York New the of nature the with inconsistent being result end the Convention, 55 54 Convention. the of VII(1) Article in contained provision more-favorable-right the of basis the on relied upon alsoin cases that fall within the scope of application of the New York Convention,and invoked be can Netherlands the of law the under in writing’ ‘agreement an of definition Convention national laws, although of saving thepurpose award. law with the strict least tothe would applicable torecourse have these agreements would not be enforced under the New York unintentional moment, and the omission to mention the arbitration agreements and refer to article II (2) was VII (1), namely, that it applies to the arbitration agreements as well. Lazic V., “ArbitrationLaw Reform in the Netherlands: Formal and Substantive Validity of an Arbitration Supreme Court (Germany),25 May (Yearbook1970, Commercial Arbitration 1977, p. 237); The Van denBerg Consolidated Commentary onNew York Convention, 2003, KluwerLaw International, p. 606 ibid , pp. 607-608 In addition, the principle of maximum efficacy provides NewYork the of attitude pro-enforcement the to beit contrary would Second, that the court shall find the In case of Netherlands, for instance, the commentators have stated that “[t]he that stated have commentators the instance, for Netherlands, of case In respective their under agreements arbitration of validity the upheld have courts Several First, Article II (2) was inserted in the textHowever, there are two reasons supporting justified of expansive interpretationthe of Article New York Convention at the last 55 . For instance, if a court is asked for recognition and enforcement of an award, it 56 57 54 . In addition, Court of First Instance in Rotterdam has held that “Arts. 1022and“Arts. has held . In inRotterdam of that addition,First Instance Court . 27 CEU eTD Collection 60 (Arbitration) on its forty-fourth session, New York, 23-27January 2006 ArbitrationXXVI (2001) p. 869).reported in U.N. Doc. A/CN.9/WG.II/WP.139 of Working Group II Insurance Ltd v. Owens Corning, 28July 2000, 2Lloyd’s Rep 500, (Yearbook Commercial 1987, (815 F 2d 840); United Kingdom, Queen’s Bench Division, Commercial Court, XL 59 Commercial Arbitration, A.J. van den Berg (ed.), Vol. XXII (1997), p. 764 58 analogy. by be applied to Convention, the of VII Art. in provision right notpreclude II)do 1074 Art. because Art. CCP, theapplication of of more-favourable-the Theunder provisions lawNewYorkConvention of thereto. the the applicable (particularly this Courtshall it that hasdeclare jurisdictionno unless the arbitration isagreement invalid CCP, 1074(1) Art. AccordingNew York. to inissuehave for arbitration case at aclause we the In respectively. Netherlands, the outside or within arbitration for agreement an of case the overlook the Arbitration Model Law, which has been touched upon in the Chapter I above and Iabove in upon Chapter the hasbeentouched Law,which Model Arbitration the overlook interntionally will below text The instruments. different through laws national other the into communications electronic the integration of ways and ways communications electronic communications. electronic of position uncertain of issue the in resolving assist might laws national in arbitration the requirement “writing” the into communications of electronic provide the rule more favorable to the validity of such agreement. Consequently, the inclusion agreements arbitration tothe ArticleVII (1) applying courts an arbitration agreement instead of article II (2) of the New York Convention ofthe NewYork II(2) of article instead agreement an arbitration innationallaws requirement “writing” out workable solution of all possible earlier.the ways mentioned author’s opinion concurring with documents,UNICTRAL Workingandthe thus showing Group theIn possibility trend. Van den Berg, the reference to Article VII (1) is the most See Chapter II.a of this paper United States, Court of Appeals for the Second Circuit,Yearbook in Genesco,reported Inc 1995, v. KakiuchiSeptember & 28 Co., 1 AprilRotterdam, Instance], of First [Court Arrondissementsrechtbank This part of the chapter will focus on the current national laws that have included the included have that laws national current the on focus will chapter the of part This As proven above, the national laws may be applied to determine the formal validity of validity formal the determine to applied be may laws national the above, proven As b. Ways of integration of electronic communications into the into communications electronic of ofintegration Ways 28 59 have beenalso in provided the 58 The examples of 60 . Should they CEU eTD Collection because an electronic signature or electronic record was used in its formation. its in used was record electronic or signature electronic an because (2) a contract relating to such transaction may not be denied legal and effect, form; electronic validity, in is it enforceability or because solely solely enforceability or validity, effect, legal be denied not may transaction such to relating record other or contract, signature, a (1) -- commerce orforeign interstate Notwithstanding any statute, regulation, or other rule of law ... with respect to any transaction in or affectingOctober1, 2000,provides as follows: 62 61 FAA. 2of the validunderarticle bevia andthus as“inwriting” considered concludedemail can Act E-Sign the that concluded means. via electronic canbe agreements thearbitration that thecaselawhasreflected agreements, arbitration of validity the for requirements formal the down put not does itself provision the Although compromise. or contract a clause in largercontainer bethat toarbitration, a a dispute Federalsubmit Arbitration writing Act, which agreementto requirementtothe expressly sets which includeclearly in electronic the communications “writing”. the arbitration concerning acts national progressive most of the examples some with briefly deal will we Below less rigid. are others criteria, whereas strict rather lawsput national Some communications. version. will focus rather on developmentthe thatfurther reached than Law Model the inits 1985 The Electronic Signatures in Global and National Commerce Act (also known as the “E-Sign Act”), Effective Act”), “E-Sign the as known (also Act Commerce National and Global in Signatures Electronic The Campbellv. General Dynamics Gov'tSystems Corp 407 F.3d 546 (1st Cir. 2005). In a notable case of Campbell v. General Dynamics Gov't Systems Corp. Systems Gov't Dynamics v. General Campbell of case In anotable of 2 Article by is governed agreements arbitration of validity formal the USA In agreements. arbitration of requirements form of in respect differ may laws National i. Examples of national arbitration laws most tolerant toelectronic mosttolerant Examples ofnationalarbitrationlaws 62 “definitively resolves” the question whether an arbitration agreement arbitration an whether question the resolves” “definitively 29 61 it was held CEU eTD Collection computer) recording its content, the arbitration agreement shall bein agreement thearbitration its recordingwriting” content, computer) function by a by means sensory natural unrecognizable and data-processing usedfor any magnetic or producedbyother (records electronic, record by electromagnetic way of arbitration agreement has to be in writing 66 means. by any 65 recorded being its include writing or in written being anything to Part this in References (6) alleged. effect to the writing in agreement an parties those between as constitutes response otherwise than in writing is alleged by one party against another party and not denied by (5) Anthe other exchange of partywrittensubmissions in arbitralin his or legal proceedings in which the existence of an agreement the parties, or by a third party, with the authority of the parties to the agreement.(4) An agreement is evidencedwriting in if an agreement made otherwise than inwriting is recorded by one of writing. in agreement an make they writing, in are which terms to by reference writing in than otherwise agree parties Where (3) (c) (b) (a) writing- in agreement isan There (2) accordingly. be construed shall “agreed” and “agree” “agreement”, expressions The betweenthe parties as to agreement any other any matter and is effective inwriting, is agreement forthe purposes arbitration the where ofonly apply this Part Part only ofthis if provisions The inwriting. (1) 64 means” by electronic proven be can also agreement arbitration … The writing in instrument by an be proven must agreement arbitration “The 63 this evidence is ifsufficient itis “recorded by means”any writing,furthermore, itcan beevidenced by parties,the andeven any thirdparties,the of and writing is (signature not required),made by communications in oriswriting, in evidenced articlesubsequent paragraphs agreement asin“writing” define the of this ifitin arbitration is the in writing, be to agreement arbitration an requires 5(1) section Although validity. means”. formal agreement“byelectronic arbitration validity an allowing provethe of to aparty definition helps toestablishmade thatarbitration agreement through an online transaction or Ibid, Paragraph 4,Article 13 Japanese Arbitration Law, Paragraph 2, Article 13 . Section 5 of the English Arbitration ACT: Article 1021 of Netherlands ArbitrationAct provides: if the agreement is evidenced in writing. evidenced is agreement the if or in writing, ofcommunications by exchange made is agreement the if parties), by the signed is it or not (whether writing in made is agreement the if The Netherlands Arbitration Act As it has already been noted above, under the under above, noted been already has it As English ArbitrationAct 63 goes even further in loosening the requirements for the formal the for requirements the in loosening further even goes 65 is unique inexpressly including the provision . However, “when an arbitration agreement is made is agreement arbitration an “when However, . 30 Japanese ArbitrationLaw 64 of 2003 an of 66 . This . CEU eTD Collection the data, provided that a number of technical and legal requirements aremet” legal and requirements a numbertechnical of provided that data, the of content and source the of identification the to respect with especially speed, and reliability can the samelevel provide insecurity paperand,of mostas cases,amuch of higher degree records electronic paper, of functions of above-mentioned of the all “in respect that document, a paper-basedfulfills same thatwould.functions document if it effect legal be same the can but given nature, its different due to paper-based document http://daccessdds.un.org/doc/UNDOC/GEN/N97/763/57/PDF/N9776357.pdf?OpenElement 68 70 March 25,2008. http://www.uncitral.org/uncitral/en/uncitral_texts/electronic_commerce/1996Model_status.html 69 policy/interpretative_guidelines_on_ec070628.pdf Trade Industry,and March 2007) p. 50; available at: 67 which electronic communication according to an approach”, equivalent “functional on a so-called Itrelies agreements. arbitration valid formally case of enacting would lead to recognition of electronic communications in concluding by Model Law the in prepared USA and have Canada,andanumber of influenced heavily been countries other been has based is it which on principles the and Law Model E-Commerce the by influenced and legislation uniform inmorewas moreover, implemented than 25 countries, adopted it since successful was rather It communications. electronic to the legal recognition and effect formally valid is considered record provedbyan electromagnetic or communications email by exchange of The Model Law on Electronic Commerce, adopted by the General Assembly on 30 January 1997, available at available 1997, January 30 on Assembly General by the adopted Commerce, on Electronic Law Model The Guide to Enactment to UNCITRAL Model Law on Electronic Commerce, para. 16 para. Commerce, Electronic on Law Model UNCITRAL to Enactment to Guide at available Commerce, Electronic on Law Model of UNCITRAL Status Economy, of ,(Ministry Trading Property Information and Commerce Electronic on Guidelines Interpretative It wasfurther by noted UNCITRALthe Working Group IV which had the drafted E-Commerce Model Law Model E-Commerce The ModelLaw onElectronic Commerce ii. The E-Commerce Model Law is designed to be enacted as the national law, and in and law, as national the be enacted to is designed Law Model The E-Commerce 67 Otherof sources law directly affecting the formal validity . 69 . 68 is the project of is legal giving UNCITRALaimedat of the theproject ; Last visited 24 February 2008; see also http://www.meti.go.jp/english//information/data/IT- 31 per se is not equivalent to a to equivalent not is 70 , last visited 24 . Article 6(1) CEU eTD Collection derogations from implementationthe of Articlethe 9(1), and arbitration is notincluded. madecontracts by means. electronic Member States have to ensure that there areaddition, In no obstaclesmeans”. electronic by to legalbe concluded to effectiveness contracts allows system and legal validity their that of agreements. also arbitration in the but general, only contracts the not covers Directive this that will bedemonstrated It June 2000. 8 Council on and European the Parliament June June 2000. 8 commerce) electronic on (Directive Market” Internal in the commerce, electronic in particular services, society 71 commerce onelectronic by the Directive set Union was allowlikely tobe arbitration the to concludedvia agreements electronic means. more Law are Model the E-Commerce enacted whichhave laws, countries the arbitration implicitly, including, it, adopted that states the of system legal in the writing of definition from Law Coverage. Model E-Commerce arbitration the commercial international exclude expressly to right the of itself availed yet state no way, in any it change as “writing”. agreement anarbitration classifies actually fact in agreements, arbitration of form the to applied if definition, This reference”. message is iftherein contained accessiblesoas tobe information the usable subsequent for ismetby requirement bea data in that to information writing, law “Where requires the states: Directive 2000/31/EC of the European Parliament and of the Council “On certain legal aspects ofinformation aspects legal certain “On Council of the and Parliament European of the 2000/31/EC Directive Second, the Article 9 (2) of the Directive setsFirst outand foremost, the Artexclusive 9 (1) of the Directive stateslist that ofMember possible States shall ensure The framework oflegal recognition of communicationselectronic in European the onElectronicEC Directive Commerce Taking into consideration a complex influence of the E-Commerce Model Law on the to free are states the Law, Model E-Commerce the implementing in though Even 32 71 accepted bytheEuropean accepted CEU eTD Collection Arbitration, J. Paulsson (ed.),Suppl. 43 (March/2005) 72 by proved means. electronic be also can agreement arbitration an of validity formal that ensure to amended was Arbitration into forceentered on And30 Junein tocomplyAct, order 2004. Article with this 1021of the and wasaccepted Act” “Emendation Commerce on Electronic Directive the implement communications for dispute out-of-court settlement, and even online disputeresolution. electronic of use the hamper to liable legislation any amend to isrequired State agreements. communications, such as electronic asvalidfor communications, concludingarbitration involved, and asinstead of article II(2) of the Convention. shown agreements arbitration of validity formal of in determination beapplied may laws national above, agreement,furthermore, the through application of article VII (1)toarbitration agreements the trendand priority,questions laws national influence the validity on the arbitration of of an is to directly determine the other types of Albert Jan van den Berg, The Netherlands, Note General Editor. International Handbook on Commercial on Handbook International Editor. General Note Netherlands, The Berg, den van Jan Albert The example of Netherlands can be taken in support of this view. In order to order In view. this of support in be taken can Netherlands of example The Each Member andArticle with Third, 52 ensurethat 17 (1)readtogether recitals 51 Thus, it would be unreasonable to undermine the significance of the national laws national the of significance the undermine to unreasonable be would it Thus, As a conclusion, although itis clear that New York Convention has the significance Conclusion for Chapter II 72 . 33 CEU eTD Collection Law Review, 2005 p. 4 73 andsuccess: acceptance of world.powers the by political economical which and has been accepted major the arbitration, commerncial order to reach a uniform solution by changing the New York Convention Convention itself, anduniformity has lead theUNCITRAL Workingconsider Group to changing the New York this chapter and certainty legal for need the and resolved not is shall problem the case, any In requirements. discuss stringent less the have which laws national propositionsthe to recourse to try them of some (2), II Artivle the put by the UNCITRAL to interpretation giveextensive an try to courts some save awards the to in order that chapters in arising as a consequence of current technology YORK CONVENTION developments. It was discussed OF REQUIREMENT “WRITING” (2) NEW THE ARTICLEII in previous James D. Fry. “The Federal Arbitration Act, Uncitral Model Law and New York”, International Arbitration According to scholars, there are several reasons for the Convention’s theConvention’s for widespread scholars, areseveral reasons According there to international of field inthe treaty successful most the is Convention York New The 1. solve matters not practical the Article(2) does II of interpretation is It the clearthat Chapter III.PROPOSEDEXPRESS MODIFICATION OF enforcement in article V a relatively process easy enforcement Amendment totheNew Amendment York Convention 9 9 Convention has exclusive listof for grounds denial of recognition and the text is easy to read and apply, which makes the procedure of 73 34 CEU eTD Collection Berg ed., Improving the Efficiency of Arbitration Agreements and Awards: 40 Years of Application of the New of the ofApplication Years 40 York Convention(1998), p.575. Awards: and Agreements Arbitration of Efficiency the Improving ed., Berg 78 77 DOC/A/CN.9/127). 76 We Go?" (2001) 8 Croat. Arbit. Yearb. 83,90 75 74 how well itwoulddrafted be, and type this of isamendment unnecessary Convention.the memberby states amendmentto could 134 everbereachedthe an over consensus think that is naïveto it practically, issue Looking atthe amended. be not should success, incredible an such being Convention, the isthat authors most the Convention. Group that the Convention the of application Protocol in uniformity the improving for need the considered Committee Consultative Legal African could not accepting aprotocol supplementto Convention.the reach Thisidea in arose 1976, when Asian the the aimed result of uniform applicationbe undermined of theduring which existingthe acceptance widespread andimplementation of Convention the could process, long,be drawn-out it a would bereached, eventually could assuming consensus that See J. Paulsson, "Towards Minimum Standards of Enforcement: Feasibility of Ibid. a Model Law" in A.J. van den A.J.van denBerg, "The 1958 New York Arbitration Convention Revisited" 125(2001) (author’s citing UN See A. Uzelac, "The Form of the Arbitration Agreement and the Fiction of Written Orality: How Far Should ; A.J. van den Berg, The question of in hasThe late90-s,and theconsensus of arisen Convention of question amending the There has been a similar idea of changing the New York Convention through Convention York New the changing of idea asimilar been has There 2. of the Convention. the of 77 The success of this protocol The be in successof matter this wouldno question underthe protocol any case, 75 Adoption of a protocol to the New York Convention York aprotocoltotheNew Adoption of . 9 Supra note 15 The Courts in most countries have accepted the pro0enforcement bias in The Courts thepro0enforcement countriesmost haveaccepted 76 . However, it was concluded by the UNCITRAL Working UNCITRAL the by concluded was it However, . 35 . 78 74 Even CEU eTD Collection Communications in International Contracts, para. 5. 80 http://www.uncitral.org/uncitral/en/uncitral_texts/electronic_commerce/2005Convention_status.html of Electronic Communications in International Contracts, available at Saudi Arabia, Senegal SierraFederation, Russian Leone, Korea, of Singapore, Republic Philippines, Sri Lanka. Paraguay, Panama, Status Montenegro, 2005 Madagascar, - UnitedLebanon, of), Nations Convention on the Use 79 means concludedvia of agreements electronic communications. into force,broad way andincludes…agreementsarbitration wouldthe text, stating in the relevant part: “ solveJune 1958)[…] anyConvention ontheRecognitionandEnforcement ofForeignArbitral Awards (NewYork, 10 controversymay becomeContractingConvention aContractingState,apply: Statetothis isor a performance of whichcontract to anyofthe following internationalconventions,which toa regarding or with the formation communications inconnection apply totheuseofelectronic the formal until 16 January 2008 validity by adopted Assembly General the on 23 November2005and has been foropen signatories of arbitrationinterpretation. and different time directly referring to the New York Convention itself, thus solving any possible ambiguity “writing”, same electroniccommunications asatthe which accept binding document, would legally a separate accept be to would solution reach auniform to way effective The most Convention memberStates York by New Contracts International in Communications Electronic Explanatory note by the UNCITRAL secretariat on the United Nations Convention on the UseofElectronic onthe Convention Nations United onthe secretariat UNCITRAL by the note Explanatory Convention beenhas signed by: African Central Republic, China, Colombia,Honduras, Iran (Islamic Republic Article 20(1) of the Convention clearly states: “ states: clearly Convention the of 20(1) Article was instrument, an such become could which E-Communications, on Convention The All lack in abovementioned possibleopinion, solutions, the author’s effectiveness. 3. Ratification of United Nations Convention on the Use of the on Convention Nations United of Ratification ”. Moreover, the Convention directly refers to arbitration agreements, within 79 The wordThe “contract” intheConvention is used in a 36 ” 80 . Hence, the Convention, in case it enters The provisions of this ConventionThe provisions of CEU eTD Collection Practicum 66 [2006]. 82 www.uncitral.org/uncitral/en/commission/sessions/38th.html 2004),22 Oct.U.N. Doc. A/CN .9/571,para. 132(8Nov.2004), accessible http:// at 81 normal course of communication, storage and display." "any for inthe which arises course, of allowing, andchange remained unaltered," complete has "information the whether of determination the based upon isIntegrity determined the communication] contains from timewhenwas firstgenerated it inits.... form final " Convention thatlegalspecifies requirements pertainingan to "original form" areif satisfied contract to meet the requirementsspecificallyinclude to drafted provisions relating "original tothe form" of a communication or of the Art. IV of the NYC. For example, Art. 9(4) of the Convention conflict with the general understanding of the term "original" used in the New York introduce the “declaration” as opposed to “reservation” with the only difference that the that difference theonly with “reservation” to asopposed “declaration” the introduce to incentive and it proposal hasUNCITRAL’s beenthe and reservations, declarations in mentioned article 20(1). of international treaties the any and Convention by the governed matter any to Convention the of application the exclude be madeunderthisit Convention,is provided in 21thatdeclarationsarticle maybe made as to be. shall Convention the successful how clear not is it and country, any on binding become yet not has it Accession, and Ratification question followingdue to reasons: there exists a reliable assurance as to the integrity of the information [the electronic areliableassurancethe information[the there exists astotheintegrityof Anjanette H. Raymond, “Electronic Commerce and the New Uncitral Draft Convention” 19-Spg Int'l L. Int'l 19-Spg Convention” Draft Uncitral New the and Commerce “Electronic Raymond, H. Anjanette Report of Workingthe Group onElectronic Commerce onthe Work of Forty-FourthSessionIts (Vienna, 11- Additionally, Article 9 of the Convention on Electronic Communications was While in fact, from the practical point of view, there is no difference between is no difference view, there of point from practical the in fact, While ¾ ¾ However, the successfulness of the Convention on E-Communications is under 82 . Although article 22 of the Convention clearly states that no reservationsSince may 3 actions are required for the Convention to enter into force – Signature, 37 (hyperlink; last visited on23 Jan. 2006). 81 Neither of these definitions stands in stands definitions these of Neither " CEU eTD Collection Standard." Singapore Academy of Law Journal 18, p. 45. Nations Conventionon the Use of Electronic Communications in International Contracts - A New Global http://www.jiclt.com/index.php/JICLT/article/view/42/28 International Commercial Law and Technology Vol.2, Issue 3(2007), available online at: < 84 83 states: Clearly Convention to the Note Explanatory The objections. of system formal foris noneed the there thus actions, deal State the not with do lawtransactions law commercial and private international behind introducing this typeinstrumentwas of that international the concerningdocuments rationale The andobjections. acceptances system of formal the trigger doesnot declaration one hand,andreservations, ontheotherhand,which theConventionexcludes onthe acceptances and objectionsbyothercontractingStates, does notsubjecttoasystemof betweenwhich declarations pertaining tothescopeofapplication, theConventionadmits and Electronic Communications Convention follows thisgrowing anddistinguishes practice the their domesticconvention legalsystem.Therefore, totheparticularrequirementsof States toagreeof oncommon rules allowing adjust theprovisions themto an international of inthe considerablearea ofprivate difficulties international law, asitmightreduce theability the Vienna Conventionand 21of ontheLaw Treaties. would Thisresult of leadto instance asprovidedinarticles20 for acceptances andobjections, systemof trigger a formal York ConventionYork onthe and Recognition Arbitral of Foreign Enforcementin Awards, would, New the of exclusion the declaration, State's that in specified conventions international the of with any inconnection Convention Communication] of [Electronic the the application exclude effectiveness of the above provision, ideaundermining toreach underlying the drafters of the a uniform solution one of the commentatorsthus agreements, noted:arbitration and Convention “AlthoughYork New both to Convention the of a State may Polanski Paul Przemyslaw, International electronic contracting in the newest UN Convention, Journal of Explanatory note to the Convention on Electronic Communications, Electronic on Convention the to note Explanatory “ Consequently, it is even easier for a party to the Convention to exclude the application the exclude to Convention the to a party for easier even is it Consequently, This distinctionisimportant becausereservations tointernational treaties typically 38 >; Chong, K. W. and S. J. Chao (2006). "United Supra note 80 , para. 317 84 . In . In analyzing of .” 83 CEU eTD Collection 86 of Goods, 33Rutgers Computer& Tech.L.J. 251 (2007). International Contracts and Its Effects on the United Nations Convention on Contracts for International the Sale 85 instruments reaches an uniform effective solution. itself is evident. However, none of the ways proposed change of Article II (2) through various most workable solution at this pointin time, the need for change in the New York Convention application Articleof VII (2) of the New York Convention to the arbitration agreements is the Although it noted determinationthat formal was validity of national lawsunder the through Conclusion for Chapter III I Convention.would So, concludeby submitting toyou: Don'tchange awinning team!” existing interpretation the of appropriate an effective with arbitration international make Convention Communications Electronic the partyto a State ofbecoming purpose whole the frustrate fact, in the in decisionsmoreyou reported thethan725court thinkI suggestthat twice: existence. However, Convention's yearsafter NewYork rule 40 of outthe not like. the this Protocol Ido or the question will come up as to whether toConvention:doubtcommentator during NewYork the “I thatnot Congress, do this again, we need prominent the to Berg, den van amend A.J. Peter of opinion the note the to important very Conventionis it validity in the form of a Van den Berg, Francesco G. Mazzotta, Notes on the United Nations Convention on the Useof Electronic Communications in Yearbook Finally, concerning the issue of reaching the uniform solution to the matters formal of the matters Finally,solution reaching the uniform concerningto the issueof 85 . Supra 15note show that the courts do not need an amendment of the Convention. They can They Convention. the of amendment an need not do courts the that show 39 86 CEU eTD Collection and uniform solution. totally Still,out of noneexcluded. made, all suggestions was capable effective of reaching an isnot communications electronic tothe in views regard more has conservative country which sufficient, not sincecommunications,non-enforcementof risk awardinthe of the are an electronic for of suchacceptance background indeed afavorable creating though solutions, Other modified. be to has that Convention York New is the it uniformity of sake the For respectively. rules arbitration lawsin andin national into “writing”, the communications electronic includethe expressly to involved and authorities the legislators intention showthe of amendments latest the agreements. Basing on this approach, the current trends were examined, and it was shown that arbitration VII(1) to the Article of application through lawsdirectly national of application The most workableArticle II(2). the of interpretation the through solutionbe reached cannot uniformity the Hence, manner. different availableinterpretations based are approaches, the worldthroughout interpreting courts on different in in case These at moment,its arisesvarious being Convention interpretations. last inserted the due to of strict the of texts authentic in difference the however, agreements, arbitration of validity formal interpretation inof basis determination as primary in the hasbeen accepted most cases The Article II (2) of Article it deliberations,academic thus is focused onthemostimportant practical concerned. issues II (2) than rather practical considerations on the wasconcentrated paper however,this discussion; is from the been haveomitted mayto seem validity formal the issues concerning Some of the Conclusion 40 CEU eTD Collection 4 Journal of International Arbitration 1 (1987) Arbitration” International of Code Djibouti “The S.K. Chatterjee, Ardsley, NY. Transnational Publishers, 2d ed., 2001 Materials and Commentary Arbitration: Commercial International Born, G.B. 14 Journal of International Arbitration 3,1997page209 Number Internet" on the Arbitration Commercial "International Arsic, Jasna, 8 Journal of International Arbitration 4 (1991) “New in EastAsia Perspectives South in Arbitration andDelocalised Kuala Lumpur” Arfazadeh, Momayoon 19-SPG Int'l L. Practicum 2006 66, “Electronic Commerce and the New Uncitral Draft Convention” Anjanette H.Raymond, Kluwer LawInternational, ICCA Congress series No 9, p. 67- 69. Courts”, the and Convention York New the of II(2) “Article Alvarez, Guillermo Aguila Literature: Bibliography http://www.kluwerarbitration.com 41 CEU eTD Collection Journal Journal of Arbitration,International Vol. 18No.2 (2001) “The Duty of the Tribunal Renderto an Enforceable Award” Horvath, Günther J. Houston Journal of International P.671Law, 2006. Spring, Convention” NewYork Under the Agreements of Arbitration Effects Harmonized “Securing Graffi, Leonardo D. Oceania Publications, January 1978 Convention. York New The Arbitration. Commercial International Gaja, Giorgio The Hague, Kluwer Law International, 1999 Arbitration Commercial International on Goldman Gaillard Fouchard Gaillard,Savage, John Emmanuel., (eds.) International Arbitration Law Review,2005p.4 “The Federal Arbitration Act, Uncitral Model Law and New York” Fry, James D.. Mealey’s International Arbitration Report, Vol. 15, #5. 1998, page 25 arbitration agreement under the New York Convention” “US Courts’ misapplication of the “agreement in writing” requirement for enforcement of an Freidland, P, Singapore Academy Law of Journal 18: (2006) -A New Global Contracts Standard" "United Nations Convention on Usethe of Electronic Communications in International Chong, K. W., Chao S. J. 42 CEU eTD Collection Melamed, Jim., Helie, John, 2 Arb. Int'l (1986) 274, 284-86 of Arbitration” Rules Law in “Mandatory International Mayer, P. Kluwer LawInternational, ICCA Congress series no. 9 (Paris/1999) “The totheForm LawApplicable of and Substance Arbitration Clause” the Lew, Julian D.M. The Hague, Kluwer Law International, 2003 Arbitration Commercial International Comparative Lew, Julian D M., Mistelis, Loukas A., Kroll, Stefan M. Electronic Journal of Comparative Law, vol. 11.1 (May 2007), Arbitration Agreement” “Arbitration Law Reform in the Netherlands: Formal and Substantive Validity of an Lazic, V Kluwer LawInternational, "Oral" ICCA Congress series no. 11 (2003) “The Requirement of a Written Form For an Arbitration Agreement When "Written" Means Landau, Toby LLM Short Thesis, European Central University, April 2007. of Communication” Means Electronic by into Entered Agreements Arbitration of Validity “Formal Jankovic, Bojana http://www.kluwerarbitration.com http://www.kluwerarbitration.com 43 http://www.ejcl.org CEU eTD Collection The Law and Practice Of International Commercial Arbitration Commercial Of The LawandPractice International Redfern, Alan & Hunter, Martin Journal of International Commercial Law and Technology Vol. 2,Issue 3 (2007), Convention” UN newest in the contracting electronic “International Polanski, Przemyslaw, Paul Kluwer LawInternational, Years of Application of NewYorkConventionthe (1998),p.575 in A.J. van den Berg ed.,Improving the Efficiency Arbitrationof Agreements andAwards: 40 "Towards Minimum Standards of Enforcement: Feasibility of a Model Law" Paulsson, J. 5 Arbitration International 3 (1989) Controls in “Judicial Arbitral Process” the Park, William. http://www.kluwerarbitration.com/arbitration/DocumentFrameSet.aspx?ipn=80284 Kluwer LawInternational LawJapan” of theArbitration to “Commentary Nagashima, Ohno& Tsunematsu, Stockholm Arbitration Report, 2003/2, pp.1-17 National Legislation?” Arbitration-Friendly And Newer Convention The NewYork Between “Risk Of Conflict Cordero Giuditta Moss, at available “Online Resolution Dispute in US” the http://www.mediate.com/articles/ecodir1.cfm http://www.kluwerarbitration.com 44 . CEU eTD Collection Consolidated Commentary on New York Convention, 2003 203 and 2042.Formal Validity, Uniform andrule Municipal Law Kluwer LawInternational, International Commercialon Handbook Arbitration, J.Paulsson Suppl. (ed.), 43(March/2005) General Editor” Note “The Netherlands, Kluwer LawInternational, ICCA Congress 9(Paris/1999),series no. pp.25– 35 “The Application of the New York Convention by the Courts” Kluwer LawInternational, Arbitration International, Vol. 5No. 3 (1989), p. 227. Years of Application of the New York Convention (Kluwer Law International, 1998) in A.J. van den Berg ed.,Improving the Efficiency Arbitrationof Agreements andAwards: 40 "The Application of the New York Convention by the Courts", ASA Special Series No. 15 (Swiss Arbitration Association, 2001) "The 1958NewYorkArbitration Convention Revisited" Van den Berg, A. J. Arbit.8 Croat. Yearb.83,90 (2001) We Go?" "The Form of the Arbitration Agreement and the Fiction of Written Orality: How Far Should Uzelac, A. Sweet and Maxwell, 4th ed. 2004 http://www.kluwerarbitration.com http://www.kluwerarbitration.com http://www.kluwerarbitration.com 45 CEU eTD Collection Japanese Arbitration Law, 2003 Japanese Arbitration Law, 2006 Code of Italian Civil Procedure, Indonesian LawNo.30of 1999 Concerning Arbitration and Alternative Dispute Resolution German Civil Code of 1998 Procedure, English Arbitration Act, 1996 Arbitration Law People'sthe of Republic 1995 of China, National legislation 2005 in of Communications Electronic Contracts, International Explanatory note by the UNCITRAL secretariat on the United Nations Convention on the Use Guide to Enactment to the UNCITRAL Model Law on Electronic Commerce, 1996 2000. (Directiveelectronic commerce), on Market” in Internal the commerce, in electronic particular ofinformation services, society aspects Directive 2000/31/ECof European the Parliament and of Council“Onthe legalcertain 2005 Contracts, in International Communications Electronic of Use the on Convention UN UNCITRAL Model Law on Electronic Commerce,1996 UNCITRAL Model Law on International Commercial Arbitration, 1985 Convention on Recognitionthe and Enforcement of Foreign Arbitral Awards, 1958 International instruments Kluwer LawInternational, (Dewenter, Kluwer Law and Taxation Publishers, 1994) “The Arbitration NewYork Convention 1958 – of aUniformTowards Judicial Interpretation” Kluwer LawInternational, http://www.kluwerarbitration.com http://www.kluwerarbitration.com 46 CEU eTD Collection Domain Name Dispute Resolution Policy The Internet Corporation Rules Procedural (BANI) ofArbitration Board The Indonesian National for AssignedSingapore International Arbitration Centre (SIAC) Arbitration Rules Names Commerce Industry. and and Numbers (ICANN)Rules of the International Commercial Arbitration Court at the Ukrainian Chamber of Rules for Industry of Russian the Federation Uniformand Commerce of Chamber the at Court Arbitration Commercial International the of Rules Rules of Arbitration Institute of the Stockholm Chamber of Commerce Rules (LCIA) Arbitration International of Court London Rules Arbitration Commercial Association Arbitration Commercial Japan (BCICAC) Centre Arbitration Commercial International Columbia British of Rules Arbitration Commercial International (ICDR) Resolution Dispute for Centre International Association Arbitration American Rulesof Arbitration International Commercial Arbitration and Mediation Center for the Americas (CAMCA) Arbitration Rules Commerce of International Arbitration Rules for PromotionChina Council of the of International Trade/China Chamber Institutions Arbitration Rules of International and Regional Arbitration USA Federal Arbitration Act (found at 9 U.S.C. Section 1 et seq) inUSA Signatures Electronic Global and National 2000 CommerceAct, International 1987 Law Act, Swiss Private Netherlands Arbitration Act, 2004 47 CEU eTD Collection policy/interpretative_guidelines_on_ec070628.pdf http://www.meti.go.jp/english//information/data/IT- (Ministry of Economy of Japan, Trade and Industry, March 2007) and , Commerce Trading Electronic on Property Interpretative Guidelines Information http://www.uncitral.org United Nations Commission on International Trade Law http://www.kluwerarbitration.com Kluwer LawInternational, Online sources 48 CEU eTD Collection Compagnie de Navigation de Transports SA v. MSC Mediterranean Shipping Company SA (1997) Swiss Federal Supreme Court Judgment of 21 March 1995, XXII Y.B. 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United States, Ninth Circuit 937 F.2d 469 (9th Campbell v. General DynamicsSystems Gov't Corp 407F.3d 546(1stCir. 2005). April F 1987, (815 2d840) United States, Court of Appeals for the Second Circuit, Genesco, Inc v. Kakiuchi & Co., 1 USA p. 869). Corning, 28July 2000, 2Lloyd’s Rep 500,(Yearbook Commercial Arbitration XXVI (2001) United Kingdom, Queen’s Bench Division, Commercial Court, XL Insurance Ltd v. Owens United Kingdom Arbitration Vol. XXI,(A.J.Van den Berg ed.1996) p.685-689, atp.687 DIETF Ltd v. RF AG (Obergericht, Basel-Land, 5 July 1994), Yearbook Commercial Van den Berg ed.1996)p. 690-698, atp. 696 (Swiss Federal Tribunal, 16 Jan 1995), Yearbook Commercial Arbitration, Vol. XXI, (A.J. 50